Loading...
HomeMy WebLinkAbout190552004716949 • • 03/82/2884 03:13: PH 8 Recorded in Official Records of CAROLYN STALEY PULASKI COUNTY 1 ORDINANCE NO. 19,055 CIRCUIT /COUNTY CLERK Fees $68.00 2 3 AN ORDINANCE TO GRANT A FRANCHISE TO CENTURYTEL 4 FIBER COMPANY II, LLC D/B /A LIGHTCORE, AS A 5 TELECOMMUNICATIONS SERVICES PROVIDER WITHIN THE 6 CITY OF LITTLE ROCK, ARKANSAS; PERMITTING USE OF 7 CITY RIGHTS -OF -WAY AND AIRSPACE; AND FOR OTHER 8 PURPOSES. 9 10 WHEREAS, the City has been requested by CenturyTel Fiber Company II, LLC d/b /a 11 LightCore to grant it a franchise to use the public streets, rights -of -way and airspace to construct 12 and maintain a telecommunications network, and 13 WHEREAS, the City is willing to grant CenturyTel Fiber Company II, LLC d/b /a 14 LightCore, a franchise pursuant to the terms and conditions of a franchise agreement between the 15 parties for the use of the public streets, rights -of -way and airspace. 16 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF 17 THE CITY OF LITTLE ROCK, ARKANSAS: 18 Section 1. The City approves and grants a franchise to CenturyTel Fiber Company II, 19 LLC d /b /a LightCore ( "LightCore "), pursuant to the terms and conditions of the agreement set 20 forth in the franchise agreement attached to this ordinance as Exhibit A, to use the public streets, 21 rights -of -way and airspace for purposes of constructing and maintaining a telecommunications 22 system within the corporate limits of the City of Little Rock, Arkansas. 23 Section 2. In addition to any other covenants set forth in Exhibit A, LightCore agrees to 24 pay the City quarterly a franchise fee described in the agreement, for use of the public streets, 25 rights -of -way and airspace. These fees are to be calculated in accordance with the terms and 26 conditions set forth in the attached franchise agreement. 27 Section 3. The term of this franchise shall be for an unlimited period and shall w 29 commence on March 19, 2004, provided that LightCore complies with all terms and conditions of the franchise agreement and obtains all necessary permits required by the City fgptsir 30 Section 4. Severability. In the event any title, section, [PAGE I OF 2] ordinance To grant telecommunications franchise to LightCore 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 0 public streets, rights -of -way and airspace. These fees are to be calculated in accordance with the terms and conditions set forth in the attached franchise agreement. Section 3. The term of this franchise shall be for an unlimited period and shall commence on March 19, 2004, provided that LightCore complies with all terms and conditions of the franchise agreement and obtains all necessary permits required by the City for such work. Section 4. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase, or word of this ordinance is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of this ordinance, which shall remain in full force and effect as if the portion so declared or adjudged to be invalid or unconstitutional were not originally a part of the ordinance. Section 5. Repealer. All laws, ordinances, resolutions, or parts of the same that are inconsistent with the provisions of this ordinance are hereby repealed to the extent of such inconsistency. PASSED: February 17, 2004 ATTEST: zz Nanc Wood, ity Clerk APPROVED AS TO LEGAL FORM: Thomas M. Carpenter, City Ukttorney Ordinance To grant telecommunications franchise to LightCore [PAGE 2 OF 21 APPROVED: Ji ailey, Mayor 2004016949 • • TELECOMIMUNICATIONS NETWORK FRANCHISE AGREEMENT THIS AGREEMENT is entered into as of the day of March, 2004, between the City of Little Rock, Arkansas ( "City") a municipal corporation duly organized pursuant to the laws of the State of Arkansas and CenturyTel Fiber Company II, LLC d /b /a LightCore, CenturyTel company ( "Company "), a limited liability company duly organized pursuant to the laws of the state of Louisiana and authorized to do business in the state of Arkansas. WITNESSETH: WHEREAS, the City recognizes that telecommunications services are essential to health, safety, welfare of the residents and economic development of the businesses of the City; and WHEREAS, the Company has requested a franchise to use the public rights -of -way controlled by the City (the "Franchise "), to continue to use existing facilities of its predecessors -in- interest, to maintain and install conduit, fiber optic cable and a telecommunications network that will facilitate the connection ofbusinesses, residences and public agencies located within the City to a telecommunications network; and WHEREAS, the parties have agreed that the terms and conditions of this Agreement are appropriate and authorized by law. NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND AGREE AS FOLLOWS: DEFINITIONS Event of Default - The events set forth in this Agreement that are a basis for the involuntary termination of this Franchise. Fiber Optic Telecommunications Network, Network or Telecommunications Network - The Company's system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment, and facilities designed and constructed for the purpose of producing, receiving, amplifying, or distributing, by audio, video, or other forms of electronic signals, authorized telecommunications services to or from subscribers or locations within or through the City. EXHIBIT A Gross Revenues• revenues, (excluding sales tax, exit lsion, terminal equipment, toll, access, yellow pages and miscellaneous equipment revenues) collected by Company for local intrastate telecommunications services provided by the Company and billed to its end user customers, in both respects within the corporate limits of the City and from operation of Company's Network installed pursuant to this Agreement. Notwithstanding the foregoing definition, the term Gross Revenues shall not include the following: (1) those revenues that the Company has received or will receive from another telecommunications service provider for services on which Company reasonably believes the other telecom provider will pay a franchise fee, (2) revenues that the Company has received from its corporate parent, subsidiary, or an affiliate, and (3) unrecovered bad debts written off of the Company's books after diligent, unsuccessful efforts to collect. Public Right -of -Way or City Right -of -Way - Streets, avenues, alleys, bridges, viaducts, rights -of -way, easements, grounds and other public places owned or controlled by, leased or granted, or otherwise under the jurisdiction and regulation of the City as provided by the laws of the state of Arkansas, as amended. SECTION 1. GRANT OF AUTHORITY 1.1 Grant of Franchise. The Company is hereby granted a franchise (the "Franchise ") to occupy and use the public rights -of -way and airways within and belonging to the City in order to construct, operate, maintain, upgrade, repair and remove a Telecommunications Network subject to the terms and conditions of this Agreement. 1.2 Term of Agreement. This Agreement shall commence thirty (30) days from the date the Little Rock Board of Directors passes an ordinance approving the Franchise and shall expire on December 31, 2008, unless the Agreement is renewed in accordance with Section 1.5 or unless the expiration date is accelerated pursuant to Section 6.3 of this Agreement, or unless the Franchise is terminated by abandonment. Upon expiration or termination of the Franchise, all rights of the Company shall cease. 1.3 Nonexclusive Franchise. The Franchise is nonexclusive. Except as expressly provided herein, nothing in this Agreement shall limit or otherwise restrict the right of the City to enter into similar agreements with other companies for use of the City's rights -of- ways and airways. 2 1.4 Scope of F• chise. The scope of the FranchisPawarded pursuant to this Agreement is limited to the incorporated area of the City. The Parties agree that their entrance into this Agreement is without prejudice to any positions they may have taken previously, or may take in the future, in any legislative, regulatory, judicial or other public forum addressing any matters, including matters related to the same types of arrangements covered in this Agreement. This Franchise shall not give the Company any right to use any property or public rights -of -way dedicated to the exclusive use of a City utility unless agreed to by such utility. 1.5 Process for Renewal of Agreement. Assuming the successful and satisfactory compliance with the terms of this Agreement, the City and the Company anticipate that the Agreement will be renewed at the end of the term set forth in Section 1.2. Prior to any renewal, the following process shall be followed: (a) Not less than one hundred and twenty (120) days prior to the end of the term of the Agreement, the Company shall notify the City in writing of its intention to seek renewal of the Agreement; (b) Upon receipt of such a written intention, the City shall schedule a public hearing to be held not later than sixty (60) days prior to the end of the term of the Agreement for purpose of seeking public input on the issue of renewal from all interested persons concerning compliance by the Company with the terms of the Franchise; (c) If, as a result of these hearings, the City determines, in its sole discretion, that any significant problems have occurred, the Company shall be required to respond to these concerns in writing within ten (10) days of written notice by the City; (d) If the City is satisfied with the answers to these inquiries, or if the City determines that there have been no significant problems, then the City shall announce not less than thirty (30) days prior to the end of the term of this Agreement its intent to renew the Agreement and shall, by resolution, state an intended term for such renewal; (e) All other terms and conditions are subject to renegotiation and an ordinance adopting a new agreement shall be enacted prior to the end of the term of this Agreement provided, the parties may agree in writing to extend the initial term in order to finalize any negotiations. The failure of the Company to negotiate in good faith shall constitute misuse of the Franchise. If the Agreement is not renewed as a result of this process, the City may, in its sole discretion, direct any action permitted by Section 6 of this Agreement. 1.6 Reservation of Authority. (a) The City reserves the right to perform any necessary public works or make any necessary public improvements to the City's rights -of- 3 ways or airways during the term of this Agreement. If, as a respof any action by the City, or by any action authorized by the City for the benefit of the public good, relocation of any of the Company's conduit or other facilities is required, such relocation shall be accomplished at the sole expense of Company. Nothing in this Franchise shall be deemed a waiver of the City's right to require the Company to comply with all applicable zoning and other applicable regulatory ordinances or to pay any reasonable permit fees or to seek appropriate authorizations from the Company to perform any work in connection with the Franchise. Should the City close, eliminate, or discontinue use of any public street or other public right -of -way during the term of this Franchise, or any renewal term, this Franchise shall cease with respect to such right -of -way upon the date of final action by the City with respect to the closure, elimination or discontinuance of such street or other right -of -way. (b) Relocation. In all cases where there is a likelihood that the Company may be required to relocate, or change the route of or reposition its poles, lines, or conduits, the City shall give notice, in the form of written plans, at a utility coordination meeting called by the Public Works Director to discuss such plans. The meeting at which the relocation plans are discussed will be held at least thirty (30) days before the relocation is required. The Company shall be entitled to be paid for its cost and expenses of any relocation, raising or lowering of its wires as required by the City, only if such expenses or costs are reimbursable or payable to the City, whether directly or indirectly, but nothing herein shall impose any obligation on the City to pay such costs and expenses except to the extent it actually receives funds from the State of Arkansas, United States or any governmental agency or subdivision of either, for the reimbursement of the City's payment of such expenses. 1.7 Notice of Intention to Construct. The City has a vested interest in assuring that any disruption of the flow of traffic, or the digging or creation of a trench in any of the streets, be kept to a minimum. In order to facilitate this interest, the City and the Company agree to the following: (a) Upon application by the Company for a construction permit to open the street, the City shall provide notice to other utilities. During such time not to exceed fifteen (15) days from the date of application, the City shall withhold approval of any such permits so that any other utility that desires to do so will be allowed to ask to simultaneously lay conduit, or other appropriate equipment, in any trench opened by the Company. The Director of Public Works may extend time for emergency situations if the City or another 13 utility so desires. The Company shall permit that utility to Aso provided: (i) the other utility shares in the cost of opening and repairing the trench; and (ii) the utility's desire to so participate does not unnecessarily delay the Company's construction schedule. (b) The Company agrees that if, pursuant to a similar application from other utilities, it receives notice from the City of a request for a permit to open the streets, the Company shall determine whether to participate in the opening of any trench by that utility and shall participate in such a project pursuant to the terms of this subsection. (c) For purposes of this subsection, "utility" means any gas provider, cable television company, electric service provider, interexchange, long distance or local exchange telecommunications services provider, any company providing a fiber optic telecommunications network, Central Arkansas Water, Little Rock Sanitary Sewer Committee, or any other entity laying pipes, cables, conduits, or wires on, over, or beneath City rights -of -way and that has a franchise with the City. SECTION 2. CONSTRUCTION REQUIREMENTS 2.1 Ouali . All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the Network that is permitted by this Franchise shall be performed in a safe, thorough, reliable manner using materials of good and durable quality in accordance with generally accepted construction standards, and in compliance with all of the applicable ordinances of the City and laws and regulations of any governmental entity having jurisdiction. If, at any time, it is determined by the City that any part of the Network is harmful to the health or safety of any person, then the Company shall, at its own cost and expense, promptly correct all such conditions. For purposes of this subsection, promptly shall mean twenty-four (24) hours, or a longer period of time if and only if additional time is granted in writing by the Director of Public Works acting with the advice and consent of the City Manager. 2.2 Construction Requirements. (a) Before the Company constructs, extends, makes major repairs to or replaces its Network (not including lateral connections that provide minimal interference with flow of traffic on public rights -of -way for which permits have been issued), it shall file with the City's Director of Public Works a written work description, including scale drawings, digital 5 location data showing the Network's existing and planned cI'ication and, if applicable, estimated depth of the facilities. The description and map shall also include information concerning the Company's fiber access Points of Presence ( "POP "). The plans will be reviewed by the Director of Public Works and any comments will be provided to the Company within ten (10) business days. The City agrees to expedite its review when conditions warrant. When an emergency occurs, the Company shall perform needed repairs to its Network in the right -of -way and shall notify the Director of Public Works within twenty-four (24) hours following such emergency repairs. (b) Any construction project shall be completed within thirty (30) days from the date that the Department of Public Works issues any necessary permits, provided that the Director of Public Works may allow reasonable extensions due to weather or Acts of God, or other reasonable circumstances that in the sole discretion of the Director of Public Works justify an extension of the project target completion date. (c) If the City requires the Company to remove, alter, change, adapt or conform its Network to enable any other person or entity, except the City, to use, or to use with greater convenience, the rights -of -way, the Company shall be obligated to make such changes to its Network only if said person or entity pays Company or posts an appropriate bond, if required by the Company, to reimburse the Company for any loss and expense which will be caused by or which will arise out of such changes to the Company's Network. The City shall not be liable for any reimbursement, Ioss, or expense which is caused by or which arises out of such changes to the Company's Network. 2.3 No Liability to Company. Neither the City nor its officers, employees, agents, attorneys, consultants or independent contractors shall have any liability to the Company as a result of any disruption or damages to the Network that occur as a result of or in connection with any protection, breaking through, movement, removal, alteration, or relocation of any part of the Network by or on behalf of the Company or the City in connection with any emergency public work of any nature whatsoever, improvement, alteration of municipal structure, any change in the grade or line of any street, or the elimination, discontinuation, or closing of any street, as provided for in this Agreement. Except, however, the City shall reasonably attempt to avoid any damage to Company's Network and shall provide reasonable notice to Company so as to allow Company to protect its Network. R SECTION 3. COMPENSATION TO THE CITY 3.1 Franchise Fees -- Amount. (a) The Company shall pay to the City franchise fees beginning with the quarterly payment immediately following the date upon which the Company begins to receive Gross Revenue, an amount equal to five percent (5 %) of Gross Revenue as defined in this Agreement. (b) The payment of a franchise fee by the Company in noway limits the right of the City to charge fees for any permits the Company is required to obtain for any construction project; nor does the payment of a franchise fee preclude the right of the City to assess a reasonable business license fee. 3.2 Franchise Fees - -Pam. All such payments of franchise fees required by this Section shall be made quarterly and, in any event, no later than fifteen (15) days after March 31, June 30, September 30, and December 31 of each year. 3.3 Franchise Fee Payments Subject to Audit; Remedy for Underpayment. Company shall provide business records which shall be sufficient for the City to verify the accuracy of the franchise fees upon request by the City. No acceptance of any franchise fee payment by the City shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount, nor shall acceptance be deemed a release of any claim the City may have for further or additional sums payable pursuant to this Franchise. All amounts paid shall be subject to audit and recomputation by the City in accordance with the provisions of this Agreement. 3.4 Service to Governmental and Institutional Facilities. In addition to any Franchise Fee collected pursuant to this Franchise, the Company shall provide the fiber and facilities to the governmental and institutional facilities attached hereto as Exhibit "A" that are adjacent to any right -of -way within which the Company installed fiber or may in the future install fiber. Exhibit "A" is not exclusive and may be amended by the City to include additional similar facilities as the City deems desirable. This section shall not apply to (i) any facilities which were constructed by a third party telecommunications company to which Company has either legal title to or a right to use specified strands ( "Third Party Facilities "), or (ii) facilities constructed by Company to create a connection between Third Party Facilities and a Company customer or third party point of presence. 7 (a) The Company shall provide to the City without c arge, and solely for City's noncommercial telecommunications purposes, four (4) dark fiber pairs in all fiber cables, whether underground or aerial, installed within the City's rights -of -way , with sufficient space for necessary joints, and the Company shall provide space in all Company POPS sufficient to access and interconnect any or all of the four dark fiber pairs allocated to the City, upon written request by the City. Additionally, the Company shall provide adequate space on all non - ducted facilities constructed on, over, or within rights -of -way, for the City to attach transmission media for the City's noncommercial use. (b) In the case of new construction of the network, the Company, at its sole cost and expense, shall provide to the City for noncommercial municipal purposes four (4) dark fiber pairs throughout the portion of the Network used for transmission purposes, as required by the City and suitable for the City's stated needs. In addition, the Company shall provide lateral lines and necessary related facilities connecting the City's locations to the Network as required by the City and any necessary facilities to accomplish the interconnection of City telecommunications services at Company's cost. Building Entrance Facilities may be constructed to facilitate the City's use of the four (4) dark fiber pairs, however, the cost of construction of such building entrance facilities shall be borne by the City. (c) Based upon specifications provided by the Company, the City reserves the right to obtain bids for placement of laterals from vendors other than Company and other franchisees. 3.5 Authority to Pass Franchise Fee Payments on to System End Users. To the extent provided by law the Company is permitted to collect any franchise fee assessed by the City from its customers. SECTION 4. OVERSIGHT REGULATION 4.1 City's Right of Oversight. The City shall have the right to oversee and periodically inspect the construction, operation, maintenance and upgrade of the Network, and all parts thereof, in accordance with the provisions of this Franchise and applicable law. The City reserves the right to adopt such rules, regulations, orders, or other directives governing the Company's construction and maintenance of the Network as it shall find 9 necessary or appropriate the exercise of its police power, andRuch other orders as the City shall find necessary or appropriate pursuant to and in furtherance of the purposes of this Franchise. The Company expressly agrees to comply with all lawful rules, regulations, orders, or other directives issued pursuant to this Section. No rule, regulation, order, or other directive issued pursuant to this Section shall constitute an amendment to this Franchise. 4.2 Proprietary Information as Property of Company. The City and the Company recognize that in order to comply with all the terms and conditions of this Franchise it may, on occasion, be necessary for the Company to provide the City access to certain proprietary information. To the extent that such information is individually noted and marked "Proprietary" by the Company, the City acknowledges that such information will always be considered to be in the sole custody and control of the Company, that the information will only be reviewed by the City and, that despite the immediate location of such material, the Company shall never be deemed to have provided it to the City for its possession and control nor to include such information as a part of any public record. In the absence of a court order issued by a court of competent jurisdiction, or a subpoena duly issued according to law, should any person request access to such information solely upon the basis of state or federal freedom of information laws, the City shall immediately return the information to the Company with notice of the request, shall refuse access to the records to the requesting party, and shall complete any necessary review at the Company's office. Nothing in this Franchise should be considered to mean that in the event it is necessary for purposes of litigation, state or federal public finance laws, or otherwise, for the City to publish such information, the City is waiving any right to request publication or to comply with any appropriate order, statute, regulation, subpoena or request for publication of such material. 4.3 Financial Reports. The Company shall, subject to appropriate proprietary treatment and protection, make available to the City not later than three (3) months after the end of the Company's annual fiscal periods with respect to the period just ended: a copy of the Company's appropriate financial statements as necessary, which statements, unless otherwise agreed to by the City, shall be certified by the Company's Chief Financial Officer in accordance with generally accepted accounting principles; a statement of the gross revenues subject to Franchise fees under this Agreement, and a calculation of fees due the City certified to be true and correct by the Company's Chief Financial Officer. 9 0 0 SECTION 5. RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS 5.1 Transfer of Franchise or Interest Therein. The Company may assign, sell, or transfer in any manner, in whole or in part, its right, title or interest in any part of the Network, provided that the Company shall give notice to the City within thirty (30) calendar days of the closing of the transaction and provided that the assignee is duly authorized by the state to own and operate the Network. The Company shall have the right to mortgage or pledge a portion or all of the Network in order to secure financing of the Company's operations obtained in the ordinary course ofbusiness of the Company. Notwithstanding the foregoing, no mortgage or pledge entered into by the Company shall relieve any person, including the Mortgagor or pledgor, of any of the terms and conditions of this Agreement. Should any person, including the Company, default or otherwise be deemed in violation of the terms of this Agreement, the City shall be permitted to exercise all its rights, privileges and remedies pursuant to this Agreement. SECTION 6. SPECIFIC RIGHTS AND REMEDIES 6.1 Nonexclusive Remedies. Each parry agrees that the other party shall have the specific rights and remedies set forth in this Agreement. These rights and remedies are in addition to and cumulative with any and all other rights or remedies, express or implied, now or hereafter available at law or in equity in order to enforce the provisions of this Franchise. Such rights and remedies shall not be exclusive, but each and every right and remedy specifically provided or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient. The exercise of one or more rights or remedies shall not be deemed a waiver of or acquiescence to any default. The exercise of any such right or remedy shall not release the other party from its obligations or any liability under this Franchise, except as expressly provided for in this Franchise or as necessary to avoid duplicative recovery from or payment by the Company or its Guarantor. 10 6.2 Events of D•ult. The Company agrees that an EvOnt of Default shall include, but shall not be limited to, any of the following acts or failure to act by the Company or any employee or agent of the Company: (a) Failure to obtain any applicable permits from the Department of Public Works of the City before construction or making material expansions to the Network. (b) Failure to supply insurance, bonds, or letters of credit as may be required by the City to assure the proper completion of any restoration or repair performed pursuant to the Franchise. (c) Failure to make any of the payments set forth in this Franchise. (d) Failure to pay any permit fees, or substantial failure to comply with any applicable rules, regulations, orders or directives of the City as set forth in this Agreement. (e) Failure to give notice to the City of assignment, sale or transfer of the Network. 6.3 City Action Upon Occurrence of an Event of Default. Upon the occurrence of an Event of Default and in accordance with the procedures provided for in this Franchise, the City may: (a) Require the Company to take such actions as necessary to cure the Event of Default; or (b) Seek money damages from the Company as compensation for such Event of Default: or (c) Declare an abandonment and revoke the Franchise by termination of this Agreement. 6.4 Procedure to Follow Upon Breach. The City shall exercise the rights set forth in this Section in accordance with the following procedures: (a) The City Manager shall notify the Company, in writing, of an alleged Event of Default. This written notice shall set forth with reasonable specificity the facts the City believes are the basis for declaring that an Event of Default has occurred. The Company shall, within thirty (30) business days of the date the notice is postmarked, or such additional time as the City Manager may specify in the notice, cure the alleged Event of Default, or, in writing, present for review by the City Manager a reasonable time frame and method to cure the Event of Default. The Company, in lieu of the cure of the Event of Default as set forth 11 herein, may present written facts and arguments as to why the ompany disagrees that an Event of Default has occurred. (b) If the Company presents a written response that challenges whether an Event of Default has occurred, the City Manager shall within ten (10) days review the submitted materials and determine again whether an Event of Default has occurred. If the City Manager reaffirms that an Event of Default has occurred, the Company shall be notified in writing of this decision and shall, within thirty (30) days, cure the alleged Event of Default. (c) If the Company fails to cure the Event of Default so declared pursuant to this Section within the time permitted by the City Manager, the City Manager shall prepare a written report to the City Board of Directors and recommend action to be taken. If the City Board of Directors, after consideration of this report, agrees that an Event of Default has occurred, it may order an appropriate remedy as set forth in this section. This section shall in no way waive or derogate any legal rights or remedies Company may have to challenge the findings of the City Manager or the City Board of Directors. 6.5 Removal. In addition to the rights under this Section, the City, upon any termination, may, at its sole discretion, direct the Company to remove, at the Company's sole cost and expense, any or all of the Network from all streets, rights -of -way and other public property within the City if the failure to remove the Network will endanger the public health and welfare or otherwise adversely affect the public interest, subject to the following: (a) The City may determine that removal ofburied fiber optic cable, or conduit, is not necessary. (b) In removing any part of the Network, the Company shall refill and compact, at its own expense, any excavation that shall be made by it and shall leave all streets and other property in as good a condition as that prevailing prior to the Company's removal of the Network. (c) The City shall have the right to inspect and approve the conditions of the streets and public property after removal has occurred. (d) The removal shall commence within thirty (30) days of an order to remove issued by the City Manager at the direction of the City Board of Directors. (e) Prior to the City's exercise of this right, the Company's mortgagees, pledgees or other persons providing financing to the Company shall have the right to cure the Company's default under this agreement. City acknowledges that its right to direct the 12 Company to remove the etwork provided herein shall be subject and subordinate to the rights of the Company's mortgagee, creditor, pledgee, or other person providing financing to the Company, as described in the written documents evidencing the financing or the security therefor, provided that such mortgagee, creditor, pledgee, or other person providing financing to the Company complies with the terms and conditions of this Agreement. 6.6 Consent not a Waiver. The grant or waiver of any one or more of the consents required by this Franchise shall not render unnecessary any subsequent consent, nor shall the grant of any such consent constitute a waiver of any other rights of the City or the Company. SECTION 7. SUBSEQUENT ACTION 7.1 Current Enforceability of Agreement. The City and the Company agree that the execution of this Franchise and the terms and conditions are valid in their entirety. 7.2 Indemnification. Company shall indemnify and hold harmless the City and all of its officers, agents, and employees from all suits, actions, or claims of any character, style, and description brought for or on account of any injuries or damages, including death, received or sustained by any person or any property occasioned by, arising out of, or in connection with the grossly negligent acts or omissions of the Company regarding the erection, construction, location, replacement, reconstruction, maintenance, repair, or operation of Company's. Network, and Company shall pay any judgments, interest, and costs which may be obtained against City arising out of such injury or damage. If the Franchise granted by this agreement is terminated, abandoned, or is not renewed, and Company does not remove its facilities from the right -of -way, Company shall continue to indemnify and hold harmless pursuant to this section as long as its facilities are located in the public rights -of -way. SECTION 8. INSURANCE 8.1 Insurance. The Company shall maintain the following insurance coverages and the respective policies thereof shall cover all risks related to the use and occupancy of the right -of -way and all other risks associated with this franchise agreement: (a) Description of Insurance Coverages and Limits: 13 1. Commercial General Liability Insura• - Two million dollars ($2,000,000) for each occurrence - coverage shall include the following: premises, operations, independent contractors, products /completed operations, personal injury, contractual liability, explosion /collapse /underground property damage. Insurance shall be provided on an occurrence basis and be as comprehensive as the current Insurance Services Office (ISO) policy. 2. Automobile Liability Insurance - One million dollars ($1,000,000) each accident - coverage shall be on "any auto," including leased, hired, owned, non -owned and borrowed vehicles. 3. Environmental Impairment Liability including Pollution Liability Insurance, if such insurance can reasonably be obtained, in the amount of one million dollars ($1,000,000) each occurrence. This coverage is to be provided on an occurrence basis and it shall include claims arising from gradual emissions and sudden accidents. Clean- up and defense costs shall be covered. 4. Workers' Compensation Insurance Statutory Limits - Employer's Liability minimum five hundred thousand dollars ($500,000) for each accident /disease -each employee /disease - policy limit. (b) Other Insurance Related Requirements 1. The City shall be named as additional insured, by endorsement, on applicable insurance policies. 2. Applicable insurance policies shall each be endorsed with a waiver of subrogation in favor of the City. 3. Insurers shall be rated "A -7" or better by A.M. Best and such companies shall be authorized to do business and be in good standing in the State of Arkansas, or otherwise approved by the City. 4. The City shall be notified within a minimum of thirty (30) days prior to the insurer's action in the event of cancellation, non - renewal or material change coverage regarding any policy providing insurance coverage required in this agreement. 5. Full limits of insurance required in Subsection (a) of this section shall 14 b available for claims arising out of this agreement with the City. 6. Certificates of insurance shall be provided by Company to the City prior to commencement of operations pursuant to this franchise. Any failure on part of the City to request such documentation shall not be construed as a waiver of insurance requirements specified herein. 7. The City shall be entitled, upon reasonable request, to review the insurance policies including endorsements thereto and, at its discretion, to require proof of payment for policy premiums. 8. The City reserves the right to revise insurance requirements specified herein and require Company to comply therewith within sixty (60) days of the City's official notice of the revision. 9. The City shall not be responsible for paying the cost of insurance coverage required herein. 10. "Other insurance" as referenced in any policy of insurance providing coverages required herein shall not apply to the City. 11. Company shall agree to either require its contractors to maintain the same insurance coverages and limits thereof as specified herein or such coverage on the Company's contractors shall be provided by the Company. SECTION 9. MISCELLANEOUS 9.1 Controlling Law. This Franchise shall be determined according to the laws of the State of Arkansas and venue and jurisdiction to challenge, contest, review, or otherwise subject its terms and conditions to litigation shall occur in Little Rock, Pulaski County, Arkansas, or in the United States District Court for the Eastern District of Arkansas. 9.2 Captions. The captions given to various provisions of this Franchise are for purposes of convenience only and are to have no impact upon the interpretation of any such provisions. 9.3 Entire Agreement. This Franchise, with its exhibits, comprises the entire agreement between the City and the Company for purposes of this Franchise. 15 9.4 Burden of•of. In any disagreement upon the Mms and conditions of this Franchise, the Company shall bear the burden of demonstrating its compliance with each term and condition of this Franchise for all purposes. 9.5 No Coercion. The Company and City enter into this Franchise willingly and without coercion, undue influence or duress. 9.6 Multiple Originals. This Franchise may be executed in any number of copies and any fully executed copy of this Franchise shall be deemed an original for purposes of authentication or presentation in evidence before any court or administrative tribunal. 9.7 Notice. Any notice or communication required in the administration of this Agreement shall be sent by any method that assures overnight delivery and shall be addressed as follows: City Manager City of Little Rock City Hall, Room 203 500 West Markham Little Rock, Arkansas 72201 with a copy, the delivery of which is not required in order for notice to be accomplished, to: City Attorney and Treasury Manager City of Little Rock City of Little Rock City Hall, Room 310 City Hall, Room 100 500 West Markham 500 West Markham Little Rock, Arkansas 72201 Notice to Company shall be to: Little Rock, Arkansas 72201 CenturyTel Fiber Company II, LLC d /b /a LightCore, A CenturyTel Company 14567 N. Outer Forty Road, Suite 500 Chesterfield, Missouri 63017 Attn: General Counsel or to such other address as Company and City may, in writing, designate from time to time provided that notice is accomplished by overnight delivery to only one (1) designated person 16 for either the City or t Company. The Company shall give notice and the information required herein to the City of the contact persons of any assignee or transferee of this Franchise within thirty (30) days of the effective date of such assignment or transfer. WHEREUPON, the City and the Company, acting through their duly authorized officers and pursuant to appropriate authority granted by their respective boards of directors, do hereby execute this Agreement. [Signatures follow on next page.] 17 0 CITY OF LITTLE ROCK, ARKANSAS By: Title: Date: ATTEST: Date: By: Title: Date: Date: [COMPANY] CITY ACKNOWLEDGMENT STATE OF ARKANSAS ) ) ss COUNTY OF PULASKI I, , notary public in and for said county in the state aforesaid, do hereby certify that Jim Dailey, personally known to me to be the Mayor of the City of Little Rock, Arkansas, and Nancy Wood, personally known to me to be the City Clerk of the City of Little Rock, appeared before me this day in person and severally acknowledged that as such City Mayor and City Clerk, they signed and sealed the said instrument and caused the seal of the authority of the Board of Directors of the City of Little Rock, Arkansas, as their free and voluntary act and deed of said City of Little Rock, Arkansas, for the uses and purposes therein set forth. Given under my hand and notarial seal this 2004. My Commission Expires: IV Notary Public day of STATE OF CORPORATE ACKNOWLEDGMENT )ss COUNTY OF ) BE IT REMEMBERED, that on this day before the undersigned, a Notary Public within and for the county aforesaid, duly commissioned and acting, appeared in person and to me well known, who stated that they were the and of the corporation executing this instrument, and were duly authorized in their respective capacities to execute the foregoing instrument for the name and behalf of said corporation, and further stated that they had executed the same for the consideration and purposes therein mentioned and set forth. WITNESS my hand and seal as such Notary Public on this day of .2004. My commission expires: 19 Notary Public